A place for a tired old woman to try to figure things out so that the world makes a bit of sense.

Saturday, June 06, 2009

Government Assisted Suicide

The latest word on how President Obama is going to tweak the military commission system he once promised to dismantle is that he is going to ask Congress for legislation to allow for guilty pleas in capital cases. Obviously directed toward the "9/11" cases against five Gitmo detainees, such legislation would allow government prosecutors to avoid the embarrassment of having evidence obtained through torture thrown out and losing the cases, according to the NY Times:

The Obama administration is considering a change in the law for the military commissions at the prison at Guantánamo Bay, Cuba, that would clear the way for detainees facing the death penalty to plead guilty without a full trial.

The provision could permit military prosecutors to avoid airing the details of brutal interrogation techniques. It could also allow the five detainees who have been charged with the Sept. 11 attacks to achieve their stated goal of pleading guilty to gain what they have called martyrdom. ...

The proposal would ease what has come to be recognized as the government’s difficult task of prosecuting men who have confessed to acts of terrorism but whose cases present extraordinary challenges. Much of the evidence against the men accused in the Sept. 11 case, as well as against other detainees, is believed to have come from confessions they gave during intense interrogations at secret C.I.A. prisons. In any legal proceeding, the reliability of those statements would be challenged, making full trials difficult and drawing new political pressure over detainee treatment.

Why is the White House asking for such legislation when the detainees themselves want to plead guilty? Well, first of all, there is no provision for guilty pleas in cases where the penalty is execution because the original Military Commissions Act was drafted with the military justice system as a template, and that system does not allow for such guilty pleas. Because of the seriousness of the alleged crimes and the punishment for the commission of such crimes, and as a matter of fairness, that system requires prosecutors to present evidence proving that anyone who is to be executed was actually guilty of the crimes charged. That way, there could be no doubt, much less reasonable doubt, of the guilt of the accused. The military justice system was to play no part in any government-assisted suicide of the delusional or profoundly depressed.

In the cases of the Guantanamo Bay detainees, such a protection is even more necessary. Yes, the five men charged with being part of the 9/11 attack on the US have asked to plead guilty as way to ensure their martyrdom, but the government should have no role in granting such martyrdom, especially given the background of the cases. These men have been tortured and have been held under deplorable conditions. It is entirely possible, if not downright probable, that they are not mentally competent to stand trial, much less to make such a decision. And even if they are determined to be competent, the government should still not be complicit in what can easily be seen as one last act of terrorism: the kind of martyrdom which will resonate throughout the Islamic world.

It's clear that government prosecutors want to be able to avoid even the kind of show trial the military commission system promises. Even such a system would require shedding some light on just how heinously this country behaved in this sordid and extended episode, and even a little light might mean that the court would feel compelled to throw out the evidence because of the way it is gathered and the accused, who just might be guilty, released.

But that is the whole point of a real system of justice in which any accused is deemed innocent until the prosecution proves his or her guilt beyond a reasonable doubt. That is what the military commission should require, and no less. One critic of the system as constituted raised that very point in the article:

Requiring prosecutors to reveal what they know about detainees and how they know it would cast light both on the interrogation techniques used against the men and the acts of terrorism for which they are facing death, said Denny LeBoeuf, an American Civil Liberties Union lawyer who works on Guantánamo death-penalty issues.

“Don’t we have an interest as a society,” Ms. LeBoeuf asked, “in a trial that examines the evidence and provides some reliable picture of what went on?”

1 Comments:

Anonymous said...

The military justice system was to play no part in any government-assisted suicide of the delusional or profoundly depressed.

[....]And even if they are determined to be competent, the government should still not be complicit in what can easily be seen as one last act of terrorism: the kind of martyrdom which will resonate throughout the Islamic world.

[....]“Don’t we have an interest as a society,” Ms. LeBoeuf asked, “in a trial that examines the evidence and provides some reliable picture of what went on?”

Exactly so.

Thanks, Diane, for posting this.Yes, what you and LeBoeuf said.

There is what's easy and then there is what's right.Let's hope the perfect storm of a) what amounts to legal cop-out, b) what may be desired as a last resort to relieve extreme and unimaginable suffering, and c) what perpetuates/serves the ends of extremist ideology DOES NOT come to pass.

At this time in history, we cannot afford to allow another "end justifies the means" solution. Because in this case, the ends are preferred by extreme ideologues in opposing camps and would only serve to reify their positions. We must focus instead on the "reliable picture of what went on" and apply the already established evidentiary standards.

There are those who already know what that means and they are begging to be indulged by the rest of us to keep their extreme world views intact. Nonetheless, if we are going to end the cycle of violence, we are at a point where we have to stop feeding the wrong wolf.